Professor Michael Debow, Professor of Law, Samford University Law School

Professor Clayton Gillette, Professor of Law, New York University Law School

Ms. Deborah Goldberg, Deputy Director of the Democracy Center, New York University Law School

MR. THOMAS EASTON (MODERATOR): Hello. I just want to say that I’m really delighted to be part of what I consider to be the first part of a much more complex discussion: the possibility of electing the first federal judges and, eventually, Supreme Court justices. The more that we take it for granted that judges ought to be activists who pursue political agendas, the more likely I think it is that such elections will be proposed during my lifetime. I would just like to open our discussion with that disturbing thought.

Our first speaker today is Dudley Oldham from the Houston, Texas firm of Fulbright and Jaworski. He is the head of litigation there and is now chairing a commission—a very impartial commission by his own account—studying the advisability of public financing for judicial elections.

MR. DUDLEY OLDHAM: Thank you very much. It is important, I think, that the commission I chair preserve its perception of impartiality. The American Bar Association itself sometimes doesn’t produce the perception of impartiality, but I assure you that we will conduct this commission so as to preserve that impression. Jan Baran, the moderator of this morning’s panel, is my colleague on that commission. Deborah Goldberg, who’s seated beside me today, has testified before the commission. Robert Peck, who was also on the morning panel, has also testified before the commission. We’re taking testimony from people with a broad range of opinions about what should be done, if anything, regarding the public financing of judicial elections.

Let me say, though, that I was asked to come here and speak about the future of judicial elections. I am able to do this because of the many different organizations with which I have been involved. I’ve been privileged to be associated with defense bar trial organizations, the American Bar Association Tort and Insurance Practice Section, which tries to strike a balance in perspectives between attorneys representing plaintiffs and defendants, as well as Lawyers for Civil Justice, a smaller organization representing mostly corporate groups.

Consequently, I’m familiar with attitudes on both sides of the aisle. And I find the practice of speaking of trial lawyers in a disparaging tone somewhat offensive to me in my capacity as a defense trial lawyer. I don’t belong to the American Trial Lawyer’s Association. I have great respect for Robert Peck and for many members of that group, but I am not a member of ATLA, although I am a trial lawyer. But I’m a defense trial lawyer. The press started referring to “trial lawyers” en mass in a negative tone, and this has also been picked up by the U.S. Chamber—and reiterated in comments made just this morning. It’s happened time and time again, and I simply want to remind our audience that there are plenty of trial lawyers out there who represent defendants as well as plaintiffs.

But let me talk now about what I came here to talk about, and that is the Standing Committee on the Independence of the Judiciary. This is an ABA standing committee that was organized just a few years ago. Bill Sessions was the first chair of that committee, and he was formerly director of the FBI and a United States federal judge in San Antonio. A.P. Carlton is the current chair, and has held that post for the past 3 years. Mr. Carlton has just been nominated, formally, to be ABA President in 2 years. This nomination will be confirmed at the annual meeting of the ABA. Consequently, I will succeed him as chair of that committee in the following year.

The Committee’s work has been exactly limited to issues related to the independence of the judiciary. The first endeavor of that committee was to set up a commission to look into selection criteria for state judicial candidates. And the work of that committee was presented to the American Bar Association’s House of Delegates last year and adopted by that body and is now being printed; it’ll be widely available within about 30 days. And the tangible work of that committee lies in its recommendations for judicial eligibility commissions, judicial nominating commissions, and various technical aspects of those kinds of bodies that are designed to give the public the perception of (at least) some impartiality and fairness in the selection process.

The main committee then established a second commission, the commission that I currently chair, that is studying the public financing of state judicial campaigns. We first began to take testimony in Austin, Texas a year ago at the state capital. We’ve also taken testimony here in Washington, and in Chicago, and we have tried to learn from that process what are some of the good things that could flow from a public funding approach, as well as what might be some of the unintended consequences that might occur if we were to adopt that model. Eventually we will begin to, very carefully, draft some conclusions, but at this stage we do not have any preconceptions as to what course of action we will finally recommend.

However, that we are addressing this issue at all is the result of a change of tack on the part of the ABA. The American Bar Association, for many years, has been in support of the merit selection of judges. But, frankly, the ABA’s position has not really taken root nationally. If anything, the opposite seems to be true, for reasons that were discussed this morning. So we are beginning to ask ourselves, if we’re going to have elections of judges, how should we go about making those elections such that judges are able to maintain the appearance of independence and impartiality with the electorate.

Justice Young made the comment on this morning’s panel that it is damning to the democratic process to think that American voters, and the American public in general, is not competent to evaluate candidates for public office, and yet many of us here today have personal knowledge of the fact that the electorate normally does not have any appreciable knowledge regarding judicial candidates when they step into a ballot booth. However, we’re not talking about this in our discussion of public financing; in fact, we’re only focusing on state appellate and supreme court races in this regard, and whether or not we should recommend nonpartisan elections in those cases, or even some other method entirely.

But, I’ll end here and respond to questions after the other panelists have concluded their remarks.

MODERATOR: I think everyone looks forward to the report from your commission. Our next panelist, Michael DeBow, is a graduate of Yale Law School and is now a professor at the Cumberland School of Law at Samford University in Alabama.

Many people are, at least theoretically, in favor of the merit selection of judges. But there are questions of what, exactly, goes into that process and how merit is determined. However, Mr. DeBow is unabashedly in favor of judicial elections, so perhaps he has a reply to proponents of merit selection.

PROFESSOR MICHAEL DeBOW: I’m primarily an antitrust and regulatory lawyer. That’s what I did in practice before I became an academic, and it remains my primary teaching and publication interest. So I must admit that this is an odd background for someone such as myself, who has become quite interested in the issue of state judicial selection. But I have a simple explanation. I live in Alabama. And it’s really impossible to live in Alabama, or it has been for the past 6 or 7 years, without forming some sort of an opinion about the proper way to go about judicial selection and comparing that to the alternatives.

In 1999, I was asked by the Federalist Society to participate on a panel that would argue the case for partisan judicial elections and then write a report. And we did that. And our report, along with a companion report written by a group that Professor Stephen Presser of Northwestern University chaired that argued for a state selection process modeled on the federal system, was published by the Federalist Society in October of that year. They are available on the Federalist Society website for anyone who’s interested, at www.fed-soc.org, but the website version does not have any footnotes and I would recommend getting the hard copy of the report since the footnotes encapsulate the extant literature on judicial selection in a fairly painless way.

Most interesting to me today has been hearing from a number of speakers that there doesn’t seem to be very much momentum any longer in favor of trying to get the states that use partisan judicial elections to switch to merit selection or some variant thereof. Consequently, the focus seems to be shifting to questions of how or whether one should reform judicial campaigns in terms of regulation of candidate speech or campaign fundraising. Although I favor judicial elections as a matter of democratic principle, I don’t think that our current system of elections is necessarily perfect. And so I agree that some reform may very well be a good idea. But as always, the devil will be in the details as to the particular proposals that are generated by the various groups that are studying these issues now.

I have three suggestions to make to would-be reformers to try to guide them in their deliberations. Before I begin, let me frame my suggestions by complimenting Justice Young’s fine talk this morning, which I think outlines the larger issues involved in this debate quite well.

I was reminded, listening to his talk, of a famous essay that George Stigler, a Nobel Prize winning economist from the University of Chicago, wrote late in his career.[8] Professor Stigler wrote of the sensation of going to academic conferences, hearing papers given, and listening to the same points being made over and over again in conference discussion periods. To escape the problem of endless repetition, Stigler proposed simply numbering the arguments and counter arguments that are always raised in academic meetings and handing out cards to people in the audience when they came in. Once you were in the audience, you could simply hold up the number 2, for example, to make the comment that you wanted to make. It would save a lot of time. People would know exactly what you were talking about. In my opinion, Justice Young’s observations on judicial philosophy would be number one in this system, the first card to hold up in talks about judicial selection. It seems to me that he is exactly right in saying that the reason that the judicial campaign process has changed so radically is that the role and self-perception of judges in our society has undergone a radical change. Depending on when you date the beginning of this change from what he called the traditionalist view of judging to a more activist view, you could trace it to 1937, or you could trace it to the Warren court, whichever you prefer. But however you date this change, I think that we must begin to understand the evolution of judicial elections by realizing that there are two very different points of view driving the process.

Frankly, I don’t think that’s going to change. I don’t really think the people on the left are going to convince the people on the right that they’re correct any time soon, or vice versa. We know that, particularly with regard to civil justice reform, an absurd amount of money is on the table in terms of the size of jury verdicts and punitive damage awards. So, until that changes, the future of judicial elections is not going to be much different, at least in the near term, given what is at stake. And because a great deal is at stake, many, many groups will want to get in on the act, want to support candidates, want to contribute to judicial candidates, and so on.

That being said, here are my three suggestions. First, I would suggest that people who are thinking about the future of judicial selection and the judiciary should be as open and inclusive in their deliberations as humanly possible. You should listen to members of the public who are not lawyers. You should take public perceptions very seriously. Let me suggest that the public perception of lawyers is not uniformly high. Therefore, reformers should keep in mind that to hear that a blue ribbon panel of lawyers has come up with a set of proposals to reform the judiciary is not going to immediately commend itself to a lot of non-lawyers.

So, far from being an internal debate among lawyers, for this discussion to have any traction at all I would think you’d have to include or involve as many members of the public as possible.

In general, with regard to any sort of campaign contribution, the candidate’s ideology precedes the contribution.

Secondly, I would like to suggest or seek a commitment from the reformers to the principle that First Amendment protection attaches to the speech of judicial candidates. In particular, I would like people on the reform side of the fence to consider whether the language in some states codes of judicial conduct about misleading speech in judicial campaigns ought to be dropped. That rule, it seems to me, intrudes too much on First Amendment rights. I don’t claim to be a Constitutional expert, but such a regulation seems vague and unenforceable on its face.

Lastly, I believe that reformers should consider very carefully any proposals for public financing of judicial elections. There seem to be a number of problems with such reforms. In particular, such proposals run the risk of reinforcing whatever public perception there may be that the process of campaign fundraising is, in itself, corrupt and that judicial candidates sell their positions on issues in exchange for campaign contributions.

I don’t think that’s the case. In general, with regard to any sort of campaign contribution, the candidate’s ideology precedes the contribution. The contribution does not determine the candidate’s ideology. The line of causation does not run that way. Consequently, too much of an emphasis on judicial campaign finance reform runs the risk of reinforcing whatever idea the public might have that justice is for sale.

Ultimately, I’m guardedly optimistic that we’ll see an evolution in the kind of debates that are engaged in judicial races, and that there will be a sharper presentation of the contrasts between, if you will, the traditionalist and the activist points of view on the role of judges in society. Once we have such a debate, the voters will decide which viewpoint they prefer, and which type of judge they would rather see enforcing the laws of the land. That’s the essence of self government after all, isn’t it? Thank you.

MODERATOR: The next speaker, Clayton Gillette, is a professor at the New York University Law School. Professor Gillette has promised me that he will give a nuanced view of judicial elections that takes into account both sides of this question.

PROFESSOR CLAYTON GILLETTE: I certainly agree with much of what has been said today about political influences that allegedly threaten judicial independence, whatever we mean by that phrase. But in my brief remarks, I want to suggest that these influences are simply derivative of a more difficult and complex issue, and that what gives us pause about the process of electing judges is our own uncertainty about the appropriate basis for casting a vote in judicial elections. As a consequence, I think we have difficulty confidently describing those activities that are suitable or unsuitable in a judicial election.

The reasons, I think, for the growth of judicial elections in recent decades have much to do with the expanding role of courts in the ordering of society. The intervention of courts into areas that were once reserved for more political decision makers, such as institutional supervision of schools, prisons or workplaces, the expansion of anti-discrimination laws that require judicial interpretation, as well as the judicial expansion of common law doctrines such as tort law, all mean that more is at stake with respect to whom is sitting on the bench than had previously been the case.

None of this, I hasten to add, necessarily leads me to agree with Justice Young about the impropriety of the expansion of judicial roles. I want to be agnostic about that issue for a moment and perhaps at the end suggest it may be perfectly appropriate. I want only to say that even if this expansion of judicial roles is appropriate, the expansion may generate unexpected consequences, and that one such consequence is the effect on judicial elections.

. . . we have growing practical evidence that the ideal of judicial neutrality is a highly sanitized one if not completely illusory.

I want to make two points with respect to this evolution of the judicial role. First, it alters our view of what judges appropriately consider in deciding cases. We have an underlying conception that judges ideally are supposed to have a set of decision making principles that distinguishes them from other governmental actors. Traditionally this ideal vision entails viewing judges as nonpartisan and independent, and this vision makes us wary of certain kinds of political campaigning. But to the extent that judges address issues that are equally suitable for legislators, our ideal vision of what judges bring to the table necessarily changes.

Second, we have growing practical evidence that the ideal of judicial neutrality is a highly sanitized one if not completely illusory. And that raises the question of whether political campaigning of the most traditional sort might be perfectly appropriate in judicial elections. Consider the first point. Allow me to make a juxtaposition here. I think we’re perfectly confident of what we’re doing when we select a representative to serve as a legislator. We anticipate that legislators will espouse particular policies, will work to have their professed agenda enacted, and will be responsive to representatives of their constituents.

We vote for legislators not because of who they are but because of the policies they purport to favor. We expect that their campaigns will be laden with specifics so that we will be able to subject them to accusations of heinous flip-flopping if they somehow don’t live up to their campaign promises.

While we might permit them, in Madison’s felicitous phrase, to refine the views of the electorate, those views are always the starting point for legislative action. I think we’re less confident of what we expect from judges. In terms of their representativeness we describe them, if at all, as counter-majoritarian. That doesn’t mean, of course, that they’re supposed to act contrary to the popular will. Rather, it means that in forming their decisions they are to consider variables that transcend the momentary position of political majorities. We speak of them as neutral arbiters, necessarily having no stake, either financial or ideological, in the outcome of the cases before them. They’re to be law followers, not law makers, and thus they’re required to be men and women of good character and prudent interpreters of the law, not representatives with constituents.

This doesn’t mean that we don’t expect a judge to have a political perspective, but we expect that judge’s conduct to entail being cognizant of the implications of her decisions and open mindedly susceptible to persuasion about the desirability of those implications, personal and political beliefs notwithstanding. Thus we think it’s inappropriate to ask a candidate for judicial appointment or election his or her view on a particular issue, as if expressing a personal perspective disqualifies the prospective judge from deciding a case in which that view might be implicated. Think of how different that is from our view of legislators. We would certainly always ask our legislators about specific issues that might arise before them. And yet we don’t do that with respect to judges.

Now, think of the consequences of that for judicial elections. If judges are not to have pre-announced substantive views, on what basis is the electorate supposed to cast their ballots? And here I think we’re in a bit of a quandary. If judges are not supposed to follow partisan political positions, if they’re indeed supposed to be counter-majoritarian, then attacking them for their votes on individual issues, whether it be the death penalty, punitive damages, gay rights, or anything else seems to be inappropriate. On this ideal, the basis of voting should be whether the judge is of good moral character and whether the judge adopts a judicial philosophy that is consistent with an accepted view of the judge’s role in society.

But this seems somewhat odd, at least for the following reasons. First, on this view, the electorate should be more interested in the personal character of judges than legislators. And that implies that personal characteristics are fair game in an election for judges. Yet, as we saw from some of the examples earlier

The more we assign to judges the historic roles of legislators, of regulating institutions or markets . . . the substantive results that follow from that philosophy call for more sophistry than . . . the electorate is willing to bear.

today, we recoil at attacks on personal characteristics during the election process. Additionally, it seems most peculiar that we’re supposed to avoid considering the position of judges on the most important issues of the day or to treat those positions as merely reflective of something called judicial philosophy.

But therein I think lies the difficulty. The more we assign to judges the historic roles of legislators, of regulating institutions or markets, our capacity to distinguish judicial philosophy from the substantive results that follow from that philosophy call for more sophistry than I think the electorate is willing to bear.

But even if the electorate could be expected to distinguish judicial philosophy from the results of judicial decision making, it’s less clear than in the ideal model of neutral judges that we would want the electorate to do so. For there is an increasing sense, perhaps born of this increasing social role of judges, that judicial politics matter. And here I don’t mean the high politics I referred to before, but the rough and tumble ideological politics that we believe is healthy in the legislative process.

As Professor DeBow mentioned a moment ago, there’s a burgeoning literature in political science about judicial decision making. And much of this literature suggests, perhaps to the surprise of no one, after going through a series of statistical models that I can’t fully understand with my poor education, that judges tend to be political animals. The judges appointed by Democrats tend to vote along the lines espoused in Democratic platforms and judges appointed by Republicans tend to vote along lines espoused in Republican platforms.

So what does all this mean? We have a traditional view of the role of judges that in theory insulates them from many of the hostilities endemic to the legislative election process. But at the same time we’ve assigned to judges roles that traditionally belong to legislators. When such issues arise, we’ve discovered that judges tend to vote very much like politicized legislators. So what is the electorate supposed to do? Is it supposed to vote on the ideal view of the judge or on the political expectations of the judge, i.e. on the substantive views of judges as legislators when they are aware of those judge’s views or the expectations of what those views will be?

Now, again, none of this is to say that the roles we have assigned to judges are in any way inappropriate. It may well be that as a matter of institutional design, judges are doing the right thing. This is heretical given what we’ve heard this morning, but let me suggest a justification for judicial activism. It may be that one of the reasons for the assignment of the roles to judges comes from or emerges from a comparative distrust of the legislative process, a fear that, although we’ve heard much this morning about the capture of the judicial process, the legislative process has been captured and therefore there’s been a resort to the judicial process.

All I’m suggesting at that point is that even if we take that position, recent developments in judicial elections suggest that the increased use of courts to settle institutional and social issues is not without cost. To the extent that our vision about what judges properly do overlaps with our image of what legislators do, and to the extent that the public comes to appreciate that politics influences the decision making processes of both, with all the accompanying ad hominem attacks and hostility, my sense is that electoral politics at both the judicial and legislative levels will experience a great deal of overlap.

So my sense of the future is, yes, we are going to see more of the same. Perhaps it’s inevitable and perhaps, depending on our view of what it is that is supposed to lead individuals to cast their votes in a certain way in a judicial election, such politics may even be healthy. Thank you.

MODERATOR: Well, there couldn’t be a better lead in for our next speaker. Deborah Goldberg is the Deputy Director of the Democracy Program at the Brennan Center for Justice at New York University Law School. She also oversees the Brennan Center’s Judicial Independence Project, which employs scholarship, legal action and public education in efforts to protect judges and the judiciary from politically motivated attacks. Now, from what we have heard today, if judges are becoming increasingly politicized, the question is how involved in politics can judges be and still avoid politically motivated attacks?

MS. DEBORAH GOLDBERG: Thank you very much. Part of what the Brennan Center does is address itself to politically motivated attacks on judges. But we have a broader agenda. And I think what I’d like to do is focus on some of the comments that were made today.

As a preliminary matter, I want to recognize right from the start that the Constitution provides a role for politics in the selection of judges. It’s clear in the federal system, where the right to nominate a judge is given to the President and a right of advise and consent to the Senate, that the Founders clearly intended the political branches to participate in the choice of the judiciary. And likewise in an elective system, we’re involving politics right from the start.

But when it comes down to individual judges making decisions in particular cases, we want to de-politicize them. And that means being fair and being willing to set aside personal political agendas in favor of neutral principles. And the question is, how can we realize both values in the same process? If we increasingly politicize the selection process, do we not run the risk that when it comes time for decision making we are going to be unable to find judges who can step back from personal predilections and decide cases on the basis of the facts and the law?

With that in mind, I want to think about what we might do in the context of judicial elections to encourage a situation where judges can do what they need to do when they’re actually on the bench. In my role as a left leaner, I’m going to talk about some of the proposals that have been made. I want to suggest to you that they are in fact totally consistent with the principles that were articulated this morning by Justice Young.

In his presentation, he argued that what we really want in the context of judicial elections is a robust discussion of issues, and that the problems with the judicial reformers are threefold. First of all, they tend to propose reforms that are rife with First Amendment problems. Second, that the reforms they tend to propose are really just incumbency protection devices. And third, that what they are demonstrating is really a mistrust of the public, and that in fact it is only the left leaning elite that is really troubled by the current system and not the public.

So let me address those issues in light of some of the proposals that have been made. First of all, let’s talk about mistrust of the public and whether or not it is in fact troubled by what’s going on. There are several polls on this issue. In Louisiana, 56 percent of voters thought the judicial decisions were influenced by campaign contributions. In Pennsylvania, 9 out of 10 voters believed judicial decisions were influenced by large campaign contributions. And in Texas, 83 percent of Texas adults believed that campaign contributions influence judicial decisions very significantly or fairly significantly.[9]

Now, I don’t know whether that’s a measure of the public’s being troubled and, in fact, I don’t quite know how one measures that characteristic of the public. But it does suggest that the public at this point at least believes that, where judicial elections turn heavily on the campaign contributions from private donors, there’s a real question as to whether or not there’s an impartial judge being elected to decide cases.

There are two proposals that I would recommend as a judicial reformer that I think are totally consistent with Justice Young’s concerns. First of all, full disclosure of funding sources. And that includes the disclosure of funding by third parties and not only by the candidates themselves. What studies have shown, at least of television advertising, is that the character of advertising between judges, political parties and independent groups is very, very different. Judges’ campaigns tend to be largely affirmative support for their candidacies. Political parties tend to be contrasts between the two judicial candidates, and third party players tend to produce highly negative attack ads.

In many jurisdictions, judges do have to disclose where the funding comes from. But the way that the independent advertising has been conducted has been calculated to avoid disclosure of who is really

I would challenge the independent players, who believe that they can trust the public, to disclose who they really are.

funding those campaigns. And therefore, if you take a look in Ohio at the political advertising that’s run there, we have major battles being run between “Citizens for a Strong Ohio” and “Citizens for an Independent Court”. Unless there’s a great deal of digging done, when the public sees those advertisements with the announcement of who paid for them, the public has not a clue who’s really sponsoring them.

I would challenge the independent players, who believe that they can trust the public, to disclose who they really are. If the public can be trusted to make decisions about judges who are running for office, surely the public can be trusted also to make their own judgment about what the financing of those advertisements means for the predilections of the judge that they’re voting for.

The second major proposal that I would suggest that I think is fully consistent with the criterion set forth by Justice Young is public financing of judicial elections. The concerns that people have about the First Amendment largely stem from the fact that contribution limits or spending limits cut back on how much can be said in the public arena. Public money has the exact opposite effect. What it does is put more money into the system. And it may seem shocking to some of you to hear a left leaning reformer talk about putting more money into the system, and I hate to disappoint you, but I believe that more money might be a good thing if it really did generate more robust discussion, more dialogue, more understanding of what the judges are all about from more diverse sources.

That returns us to Justice Young’s second objection, which is that public financing amounts to incumbency protection. The public financing systems that are in place today have demonstrated that public money brings people into the system who would otherwise be excluded. It brings more challengers to incumbents. And in a system where, as we heard this morning, only 17 out of 183 Florida judges are even opposed in an election, more competition might very well be a good thing.

Now, this might work well for the left, this might work well for the right. Obviously it depends on the jurisdiction in which there are no challengers and the characteristics of the judges. But that might give you reason for pause when thinking about voters—not to approach them in an un-nuanced way. One has to, always, consider the context in which these reforms are being presented. And whether or not we can anticipate what their effects will be will depend a great deal upon the political pressures and context in which they’re operating.

I also think that by focusing on providing information to the public, and providing informational resources to the candidates, that we might very well avoid the concern that Professor DeBow raised that the focus by reformers on judicial campaign financing heightens the public impression that judges are on the take.

If what we’re focusing on is insuring that there is robust discussion and that campaign funds are insulated from the sources that give people concern, then I think we might very well (through targeted reforms) both help to create a perception of integrity in government, and hopefully also help to create the reality of integrity, and have elections that will really meet the goals of the selection process, whatever those may be.

MODERATOR: I have to say, as someone who spends a great deal of time trying to figure out who pays whom for what in elections, I think the idea of greater transparency in elections is terrific. I was wondering, would anyone really object to that notion of greater transparency in disclosing where contributions come from?

AUDIENCE MEMBER [Jim Wootton, from the audience]: Tom, I don’t object to it. But it seems unlikely to me that it would substantially improve the process. Everyone in this room knows where the money comes from for third party ads against the plaintiffs bar candidate and for the pro-business candidate, if I can phrase it that way. It might be nice to know the details, but I’m not sure that that’s a big improvement in the public level of understanding of campaign financing.

MODERATOR: As you probably know, the American Tort Reform Association now has a new website where you can plug in a political candidate and can come up with, in Hilary Clinton’s case, 200 different law firms that contributed to her campaign. And if any of you have ever tried to spend time putting together those records prior to that website, it is just a nightmare. Nobody contributes under their own name. Nobody even really contributes under their firm name. It’s all done through some vaguely linked process.

So when I came upon this website, which Walter Olson on Overlawyered.com described as hours of fun and viewing pleasure, I thought it was sensational. And my sense is that more of this type of disclosure would be good, but you seem to disagree.

MR. WOOTTON: I don’t want to be misunderstood about this. I’m all for transparency. But the players in this know basically where the money comes from.

MODERATOR: Who are the players? Do you mean the public? Or do you mean the people who sponsor these ads? The one other very interesting suggestion that I think is even more controversial was public funding.

MR. OLDHAM: Well, perhaps I’ll do that since that’s what the commission’s looking at. I’ve heard a lot of opinions on the subject. That’s the purpose of the commission, to listen to those opinions. And, in fact, although Jim Wootton was unable to speak in person with us at our last sitting due to illness, he submitted his comments in writing so that we had access to his viewpoint.

But the issues we’re hearing, and hearing from lots of different sources, were crystallized by Tom Phillips, the Chief Justice of the Texas Supreme Court, who was one of the principal organizers of the Summit of Chief Justices in Chicago last year that was referenced earlier during this mornings program. Justice Phillips is also a product of the incredible electoral turmoil that we’ve been discussing, including the genesis of the tremendous escalation in campaign finance spending and animosity that developed in the Texas elections during the 1980s. The history of the Texas Supreme Court elections alone could take an entire afternoon.

But in brief, that history would be that the legislative process had not been productive for a Texas trial lawyer’s association. And as Robert Peck mentioned this morning, the state organizations of the National Association of Trial Lawyers handle their states independently. The Texas trial lawyers decided they would back away from the legislature and come at their problems in a different way. So they began then to promote someone for election to the Texas Supreme Court, with the philosophy, and I’m paraphrasing now, that we ought to put somebody on the Texas Supreme Court who is sympathetic to our concerns. We can get reforms done or “legislated” at that level that we could not get through the legislative process.

It took a number of years to get name identification for their candidates and get that done. But when it was done, Texas jurisprudence of a hundred years changed virtually overnight—in 30 days. And then the business interests began—slowly—to become aware of that sea-change and it them took 10 years to swing the pendulum back the other way.

What’s the point of all that? It is that cycles occur. And back then, we’ve got to remember, Texas was a Democratic state—you were either a liberal Democrat or a conservative Democrat, there was no such thing as a Texas Republican. But Texas did become a two party state, and we’ve developed a cyclical pattern of party politics. The Republican party, now that they control the game, refuses to have non-partisan judicial elections, just as the Democrats did when they held power. Nevertheless, Tom Phillips would say, as a Republican and as the state Chief Justice, that this has not been good for the perception of impartiality in the court system in Texas.

One of the reasons that I agreed to chair this commission, a hot potato by any standard, was because I also believe there is a growing perception of impropriety surrounding the Texas court system and that we had better do something to restore the perception of independence and fairness to our courts. And so I want to guide this commission’s work as best I can and listen to both sides and hear many different points of view.

MODERATOR: This obviously brings up some big issues. I am reminded of Professor Gillette’s point: what is our basis for casting a vote in these elections? Undoubtedly, there are great many Americans who would say that they don’t want a judiciary that is open-minded to persuasion, at least on some issues. They want an advocacy judiciary. But let’s open the floor up to questions from the audience.

MR. WOOTTON: Well, I want to want to speak to the issue of disclosure. I’m enamored of disclosure and recusal rules generally, and I also happen to think it has to be mandatory recusal because I don’t think lawyers in practice will actually ask judges to recuse themselves if they have to make the motion. But here’s what I think I know about the corporate mentality about disclosure on the issue ad side. Number one, I think the corporate community believes that the Supreme Court had it about right in Buckley [10], which says that the state cannot regulate speech in this area and therefore disclosure regulations ought not to be attached to non-expressed advocacy. This, as we all know, is the starting point for the law of the land, and we’ve been there for a long time.

But let’s say for a minute that there was some push for more disclosure. Number one, when the Chamber of Commerce runs ads under its name, I don’t think the public is in any way misled as to the point of view of the funders of those advertisements. We are not a consumer organization, we’re not an environmental organization. We’re a business organization. We care about the business and regulatory environment. And our membership is open more or less to the public and everybody knows who belongs to the Chamber of Commerce.

So from the public’s point of view, I don’t think mandatory disclosure would really help much. I think the push for disclosure on the issue ad side, notwithstanding other issues or other Constitutional questions, is

. . . when corporations use their brand name, and their brand gets out there as having contributed to a specific candidate or issue, they are subject to retribution . . .

inappropriate for two reasons. One, when corporations use their brand name, and their brand gets out there as having contributed to a specific candidate or issue, they are subject to retribution in two ways. One, they’re subject to retribution through litigation. Class action trial lawyers can turn the class action fire hose against those companies. Two, those corporations are subject to boycotts and other kinds of consumer retribution by people who are allies of the class action bar.

So my view is if you had disclosure it would be very difficult to have a disclosure of the kind that was debated in Ohio. It would make it very difficult for the corporate community to participate frankly in policy debates. Now, they may figure out a way to do that, and there may be a big enough group, just like the Chamber, representing a group of corporations that could provide insulation from that kind of retribution, but the risk of retribution is a reality. Naturally, we should start with our Constitutional protections. But the reality is that it’s very tough for corporate America to participate in policy debates or elections in the same manner as individuals, parties, or the class action bar.

I don’t think that comes as a surprise, by the way, to the advocates of disclosure. I think transparency is a very high minded ideal. But I think there’s a secondary agenda to this debate that would happily discourage participation on the part of the corporate community.

MODERATOR: Any thoughts on that?

MS. GOLDBERG: I have two thoughts about that. The first thing I noticed is that you were very careful to say that when the Chamber runs ads in its own name, everybody knows who’s speaking. I think that’s correct. You will also notice that I was very careful to list sponsors of advertisements other than the Chamber in its own name. I was using names of front groups, for business interests or trial lawyer interests. And I think we would come a very long way if we were going to have disclosure at that level, where business interests were clearly business interests when they were running ads and trial lawyers were clearly trial lawyers when they were running ads, or simply that whatever group was running ads was clearly identified.

It’s these innocuous sounding names, often totally misleading names, that really can act to confuse the public or at least screen them from information. And I totally agree that just having the names of contributors available through a public agency via reporting requirements is wholly inadequate to let the average voter understand what’s going on. Normally, the process is terribly opaque. In many cases these (disclosure) records are not electronic. They’re just paper records. The only way to find out what’s going on is to comb through them physically. Sometimes the press will do that. Sometimes interest groups will do that. Sometimes no one will ever bother.

So I would certainly advocate that at the very least when there is advertising, whether it be advertising that uses certain “magic” words and therefore qualifies under the most narrow definition of express advocacy or advocacy that is clearly intended to influence an election, whether or not it uses those words, that there be disclosure on the face of the ad of who the interest group is that’s really supporting that ad. We are a long way from that right now. And there is a great deal of opposition to that, surprisingly.

MODERATOR: You know, lacking the power of the subpoena myself, I have to say that when you go for those records into state capitals, you run into clerks who may or may not be interested in providing information for any number of reasons. And therefore the availability of information, even though technically open to the public, is very, very problematic. The information is often almost impossible to get regardless of what the law says. You can file FOIA requests—but even those take too long.

MR. WOOTTON: I would like to follow up on this disclosure discussion for a minute with just two other points along the same lines as the previous ones, that the question of disclosure is not as simple as it seems. I remember that a number of years ago the reform proposals focused on non disclosure because the fear was that judges would favor donors or appear to favor donors. The same problem would work in independent issue advocacy ads as well.

MODERATOR: Good point.

MR. WOOTTON: The other issue is what about the evaluations of judges that are distributed, that purport to be about competence and character but may have a hidden ideological bias?

MODERATOR: Well, we certainly should spend at least one moment on that. We always hear about judicial evaluations. But how do these evaluations work? What guarantees their impartiality? For instance, the evaluation of products like Coca-Cola does is determined in the marketplace. The evaluation of how GM is doing is determined in the marketplace. We don’t wait for either Consumer Reports or Ralph Nader or anyone else to make those decisions. We let the public do it. Why, then, do we tolerate these evaluations of judges? Does anyone really think they’re worth anything or are they just excuses for ideological baiting?

MR. OLDHAM: Well, what evaluations are you talking about?

MODERATOR: Well, judges are vetted for their competency; for instance, the ABA was doing this until very recently at the Federal level and yet it’s only recently become a controversial issue, given the Bush administration’s stance. But does the Administration have a point? What are the non-judgmental terms that can be used to evaluate judicial competency? And, frankly, is this a feasible project to undertake anyway? Can a group of wise men or women get together and decide who would make a good judge?

MR. OLDHAM: Well, I do think it’s interesting that there are a number of judicial evaluations that are done principally by bar associations across the United States. And in many of those instances, judges, sitting judges, really oppose them. The premise behind those evaluations, I suppose, was that the lawyers who were appearing before those judges would have more empirical data on which to base an evaluation because the evaluations themselves were based on a list of attributes that attorneys would be most familiar with: courtesy to litigants, appearance of impartiality, knowledge of the law, application of the law. Those kinds of criteria. But if we fast forward to contemporary judicial races, those of us who are trial lawyers and who are down at the courthouse still get asked by our neighbors and others: Who should I vote for here? Who is a good candidate?

MODERATOR: Do you think you could objectively answer that question?

MR. OLDHAM: Sometimes I can do so.

MODERATOR: Even if you may be personally biased towards one or another judge?

MR. OLDHAM: Sometimes I cannot.

MODERATOR: Let me rephrase that. If you know the two candidates personally can you objectively answer that question?

MR. OLDHAM: Most times you can on that basis.

MODERATOR: Really?

MR. OLDHAM: Yes. And I think most lawyers would agree with me. I’ll point to an example. Again, I’m not at free rein here to respond to some of these questions, but a jurist in Texas was defeated earlier this year in the general election who was soundly endorsed by the local newspaper, endorsed, really, by both political parties, although not formally by the parties, and had seven or eight times the amount of campaign financing as his opponent. He lost because Texas allows voters to pull a single lever, a party ticket lever, for all races, including judicial races, and consequently this judge was swept out of office.

If anyone had asked me about his qualifications versus those of his opponent, I would have said that he is unquestionably the more qualified candidate with a record on the bench that justified my evaluation. But the “single lever pull” knocked that judge out. That is not an unusual situation in Texas. It knocked out a lot of Republican judges when Texas was controlled by Democrats, and it’s knocked out a lot of Democrats now that the wind is blowing the other way. The result being that those judges who want to be elected better get off the ticket that’s out of power and get on the other one if they want to be elected. This judge had reasons why he remained on the ticket he did, and he testified to those before our commission.

I think there are two fundamental points we ought to recall as we conclude our proceedings today. Are judicial campaigns different than normal elective campaigns? One school of thought is that yes, there is a difference, and judicial candidates should not have a constituency like normal political candidates. The other argument we heard this morning is that the judiciary is changing and moving more towards a legislative role and therefore should have a constituency.

But if you had those candidates’ records and experiences made available to the public by publishing, whether through publicly funded publishing or private publishing, along with the official resumes of judicial candidates, you could go a long way toward increasing public confidence in the judges they were voting for. They could have knowledge of their political persuasion and judicial philosophy rather than having to depend on attack ads to define judicial candidates.

MODERATOR: Any other questions?

MR. GILLETTE: I think that there are two potential difficulties with the evaluative process. The first is simply some doubt about the capacity of the public, faced with resumes or faced with lots of information about judicial candidates, to be able to distill what that information means. Tom, for instance, mentioned that I have a 5 page resume. He said that as if he were somehow impressed with that. If he looked closely, he would see that most of that’s fluff, and he would be much less impressed. And my great fear is that the public couldn’t really discern for itself what really was significant, or fluff for that matter, on this or that resume, or what kind of experience was reflected in judicial evaluations, or how highly qualified a potential jurist really could be.

Experience, and therefore incumbency, might be evaluated too highly and it would greatly distort the possibility that a new judge would be rated higher than a candidate who in his or her dotage had lots of experience but not much else.

Second, I am in the academic world, which allegedly is involved in a constant process of evaluation: the evaluation of our students. What I’ve discovered over 20 years in this enterprise is that our willingness to evaluate has collapsed and that we’ve gone from a system which most of us in this room might remember in which there were such things as C grades as well as A grades, and even the occasional D and F, to a world in which what counts as evaluation means collapsing an entire student body into relatively few gradations. Everybody gets some form of B-plus at NYU. It may be a high B-plus or a low B-plus but it’s a B-plus. And NYU is not idiosyncratic in their grade inflation.

MODERATOR: All students are above average.

MR. GILLETTE: They’re all above average. That’s just it. And my guess is that when lawyers evaluate judges the range of evaluation probably goes all the way from as high as “qualified” to as low as “unqualified”. Now, if the level of gradations is sufficiently small, you’re not going to be able to distinguish much about judges. Second, not many lawyers are going to be completely honest, even in what they consider to be the anonymity of a check mark, and declare that a particular judge is unqualified to sit on the bench. Indeed, what led to the scandal over ABA evaluation was that they offered that choice, qualified or unqualified, or perhaps included the category of highly qualified, and the ABA sometimes actually cast the vote of unqualified, leading to the charge that conservative judges disproportionately received lower ratings.

So my sense is that the experts, those who really know something, the lawyers who might say something about prospective judges, will not be able to say much that is meaningful to the public. And the public, even if they have information that in theory is meaningful will not themselves be able to evaluate it. Although in the abstract I think that judicial evaluations are a fine idea, the devil’s in the details, and I have much less hope about our ability to implement any meaningful evaluative process.

MODERATOR: We have to draw this discussion to a close. I just want to make one observation, which is that I think if we did this in two years, there would be one very, very profound change. And I think that will be the ability of the public to obtain judicial opinions with very little effort. For instance, if you ask people how they feel about Justice Clarence Thomas, who’s a very controversial person, they will give you an opinion. If you ask them what specific decision they liked or didn’t like, they will be (currently) unable to cite anything. I don’t think that will be true for children who are teenagers today when they are in their 20s. They’re just too comfortable going online and pulling up decisions. Impediments to the public’s understanding of judicial philosophy, if you will, are falling thanks to technology.

Notes

Precedent and Policy, 34 U. Chi. L. Rev. 3, at 23 (1966).

Interest Groups and Judicial Elections (Dec. 2000)(unpublished monograph on file with the National Center for State Courts).

How the Public Views the State Courts: A 1999 National Survey by the National Center for State Courts, Funded by the Hearst Corporation. (1999) Williamsburg, VA: National Center for State Courts [On-line]. Available: http://www.ncsc.dni.us/PTC/results/nms4.htm.

SUMMARY:In some states in recent years, judicial elections have become political contests of the first order: high profile, expensive, and acrimonious. As a result, the CLP and the U.S. Chamber of Commerce Institute for Legal Reform convened a conference of state supreme court justices, academics, and representatives from the American Bar Association to discuss the trends fueling this change and the future of judicial elections. This transcript is essential reading for anyone interested in the growing debate over judicial ideology at both the state and federal levels.